Frequently Asked Questions

A: Bidding a service means that you will hire the company that can do the job you have described for the least amount of money. While this might work in a brick and mortars project where the job tasks are simple and understood, it is often difficult to know job tasks in a design project. Because you, the client, might not have the expertise on staff to anticipate the full range of tasks that must be done to design or manage a project, you could easily leave something out of the bid requirements. Firms, even knowing a task is not included, do not have the opportunity to inform you of such, only to bid on the tasks you have listed. This leads to change orders and contract modifications once you get into the project.

The QBS process allows you to negotiate tasks and scope of work, prior to signing a contract. This gives you, the client, an assurance of total costs up front and the design professional an opportunity to share his expertise with you on the best way to do the job, prior to having to set his fees.

A: No, but it does require companies to now compete based upon their qualifications for the project and not initially on cost.

A: Qualifications are set individually for each project by the you, the client! There are some basic guidelines that can be followed but the decision on the qualifications that best meet the needs of your project is yours alone. Some of the basic qualifications you might consider include:

• Company background and experience
• Experience on similar projects
• Individual team member qualifications
• Roles of individual team members
• The company’s understanding of the project
• Ability to complete the work
• Timelines
• Licensing and Registrations

A: You, as the client, then simply move to the next company on the list. You are not obligated to take the first company ranked if you cannot come to an understanding of tasks and money. You are never required to pay more than you can afford or have budgeted – but beware, oftentimes the negotiations over a scope of work will point out major tasks you may have overlooked. The importance of a good design is not only the design to construct a project, but to consider the life cycle costs as well.

A: A good design professional will help his/her client to understand the ongoing operation and maintenance costs of running the building or project well into the future, long after that professional has left the scene. For instances, certain types of windows may be much cheaper than energy efficient windows, but the utility costs over a twenty year period might run far more than (several hundred percent) than if you invested up front in the better windows. Your design professional can help you with these budgeting details. While this is a simple example, it demonstrates the importance of having the opportunity to discuss these tasks with your design professional and come to a mutual understanding of them prior to entering into a final contract for his services.

A: In some cases, negotiations could take longer than a simple bid. However, as demonstrated above, this extra time will prove well worth it in the design quality and life cycle cost savings of your project.

A: The Brooks Act is a federal law that has required this process on any project using federal funds since 1976. It has long been a recommended practice in Idaho law and in 1998 became a mandatory process. Major national organizations like the American Consulting Engineers Council, the American Public Works Administrators, the National Society of Professional Engineers, the American Institute of Architects, the American Society of Landscape Architects and more have endorsed the concept for years. QBS has long been recognized as the process that best serves the public interest throughout the nation and in many parts of the world.

A: No, both federal and Idaho law allow you to set up a list of qualified professionals in all of the areas to hire from, as long as that list was created through a QBS process. For example, you simply need to summarize the type of engineering work you might need over the next year, rank the applicants on a list and then chose from that list as projects that fall within the engineering work delineated come up.

A: The Idaho QBS Facilitator Council and volunteers are made up of design professional from all profession that are willing, at a moments notice to assist you with your procurement process. Please see other pages on this website for details on that free assistance.

A: Our QBS Council only serves an educational function. We will be glad to contact the “violator” and inform them of the problems, as well as offer free services to help them correct the problems. However, we are not enforcers and do not offer anything more than our assistance. If you see a violation, please call us at 208-321-1502 and we will follow up. All calls are confidential and those reporting violations are kept anonymous.

Qualification Based Selection Council Interpretation 2013

In 2012, a question was raised on the definition of the term agent in Idaho Code 67-2320, on Qualification Based Selection.

67-2320. Professional service contracts with design professionals, construction managers and professional land surveyors. (1) Notwithstanding any other provision of law to the contrary, it shall be the policy of this state that all public agencies and political subdivisions of the state of Idaho and their agents shall make selections for professional engineering, architectural, landscape architecture, construction management and professional land surveying services, including services by persons licensed pursuant to Chapters 3, 12, 30 and 45, Title 54, Idaho Code, on the basis of qualifications and demonstrated competence and shall negotiate contracts or agreements for such services on the basis of demonstrated competence and qualifications for the type of services required at fair and reasonable prices. (emphasis added)

The meaning of the term is important, particularly as it applies to a situation when a design professional, as defined under the law, engages a secondary design professional to work on the project. This would involve a situation when a public agency hires a consultant through QBS to complete a project, and during the course of that project they need to hire a sub-consultant to complete their work – what is the correct process for selecting that sub-consultant. Previous interpretations have indicated that the QBS requirement does not apply to relationships between two private parties, only between a political subdivision and a private party and, therefore, QBS does not apply even though the project is a public project and the funds are public funds.

The QBS Council engaged Jeremy Chou of Givens Pursley LLP, to issue a written opinion.

In his written opinion, Jeremy said that the QBS law was amended in 1994 to add the word “agent” to the law, but that the definition was not defined. Because of that, we should use the interpretation in a manner that gives the statute’s words their plain, usual and ordinary meaning. Thus, where a private party acts as an agent of a public agency, meaning he has the legal authority to act for or represent that entity, he is bound to follow the QBS procedure. However, if the private party is not an agent or is acting as a consultant without authority to act on behalf of the entity, compliance with the QBS process is not necessary.

The application of QBS on the sub-consultant is dependent on what the original contract said the consultant was authorized to do, what was said in their scope of work and how far they were allowed to act for the public entity to complete the project. If the contract provides that the consultant may act as an “agent” of the entity, the consultant must use the formal statutory QBS process in the selection of sub-consultants.

QBS Council Recommendation:

We recommend that public agencies be educated to foresee this situation and address the hiring of sub-consultants at the time of the Request for Proposal stage of selection of the prime consultant. When the prime consultant to be selected will not be acting as an Agent, the following statements should be added to the Request for Proposals:

“All known design-professional sub-consultants needed to complete the project (individual or firm) must be identified in the consultant’s proposal. (This should include all professions listed in Idaho Code 67-2320).”
“If unforeseen conditions require the need for addition of a sub-consultant, those identified in Idaho Code 67-2320 should be hired based on qualifications and not price.”